The appellate court upheld defendant's convictions for unlawful possession of a controlled substance and resisting or obstructing a peace officer arising from a free-air sniff by a drug-sniffing dog following a traffic stop for failing to dim the bright lights on the car defendant owned but in which he was riding as a passenger, since defendant's trial counsel was not ineffective in failing to raise the meritless argument that the stop was unnecessarily prolonged by the free-air sniff, after the valid traffic stop, defendant was not subjected to a second seizure that was unlawful and an unlawful search when the officer requested that the windows of the car be closed and the heater be turned on in preparation for the free-air sniff, especially when defendant had already been lawfully seized, and the " prepping" procedure for the free-air sniff is not, according to Bartelt, a search in violation of the fourth amendment, and although the evidence was sufficient to sustain defendant's possession conviction based on the cocaine found in the area of the car where defendant was riding, his conviction for resisting or obstructing a peace officer was reduced from a felony to a misdemeanor and the cause was remanded for resentencing due to the absence of any evidence that the officer was injured.

Michael J. Pelletier and Adrienne River, both of State Appellate Defender's Office, of Chicago, for appellant.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice O'Brien concurred in the judgment.

OPINION

Page 3

SCHMIDT, JUSTICE.

[¶1] After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance (720 ILCS 570/402(c) (West 2008)) and resisting a peace officer (720 ILCS 5/31-1(a), (a-7) (West 2008)). The trial court sentenced defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App. (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and

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turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in part, modify in part, and remand for further proceedings.

[¶2] FACTS

[¶3] Defendant was charged by amended information with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)), resisting or obstructing a peace officer (720 ILCS 5/31-1(a), (a-7) (West 2008)), and obstructing justice (720 ILCS 5/31-4(a) (West 2008)). Defense counsel filed a motion to suppress evidence, arguing that excessive force had been used by the police. The motion stated that the car defendant was riding in was stopped by Officer William Rivord for failing to dim its bright lights. Defendant and the driver, William Gordon, told Rivord that there was nothing illegal in the car and they did not consent to a search. Rivord conducted a free-air sniff with his canine unit. After the search, Rivord told defendant and Gordon that the dog had alerted and he was going to search the vehicle. The motion alleged that Rivord and Sergeant Pat Clapper used excessive force to obtain evidence from defendant after he exited the vehicle.

[¶4] At the hearing on defendant's motion, Gordon testified that on the night of May 3, 2008, he was driving defendant's blue Lincoln when he was stopped by Rivord for failing to dim his bright lights. Defendant was a passenger in the vehicle and was unable to drive because he did not have a valid driver's license. During the stop, Rivord instructed Gordon to start the Lincoln and roll the windows up while Rivord walked his dog around the car. Thereafter, Rivord told Gordon that the dog had alerted and ordered Gordon and defendant out of the car. As Rivord escorted Gordon out of the Lincoln, Gordon heard a second police officer yell at defendant. Gordon saw the second officer call for backup as he was choking defendant on the ground.

[¶5] Defendant testified that on the date of the stop, he was riding in his Lincoln with Gordon when the vehicle was stopped by Rivord. Rivord asked for Gordon's driver's license, vehicle registration, and proof of insurance. After obtaining the documents, Rivord instructed defendant and Gordon to wait in the car while he returned to his patrol car. Thereafter, Rivord handed the documents back, and he asked Gordon to roll up the windows and turn on the heat because he was going to walk his dog around the car. Following the free-air sniff, Rivord directed defendant and Gordon to exit the car. As defendant got out of the car, two prescription Vicodin pills fell off of his coat and onto the ground. Defendant picked up the pills and put them in his mouth. At that point, Clapper forced defendant to the ground, ordered defendant to open his mouth, and choked defendant. Defendant opened his mouth and did not resist the officer. Eventually, defendant lost consciousness and awoke the following day in a hospital.

[¶6] On cross-examination, defendant stated that he had swallowed the Vicodin pills that fell on the ground, and he did not recall Clapper's order to step away from a baggie that fell to the ground as he exited the vehicle. Defendant reported that he dropped a piece of plastic that contained the Vicodin pills, but contended that he did not have a baggie. Defendant did not take the pills earlier in the stop because he forgot about them while he was looking for the documents that Rivord had requested.

[¶7] Rivord testified that he stopped a blue Lincoln at approximately 11:30 p.m. on May 3, 2008, for driving with its bright lights on. Initially, Rivord approached the driver's ...

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